Mr X and the Department of Foreign Affairs

Case 98190. Section 2 &amp; 28 - whether names of individuals in file titles constitute personal information - Section 23(1)(c) whether revealing names of transport companies used by a public body can facilitate commission of an offence - Section 24(1) - whether access to certain file titles can reasonably be expected to affect adversely (a) the security of the State, (c) the international relations of the State, or (d) matters relating to Northern Ireland

Case Summary

Facts

Mr X sought access to the list of titles of files held in the Anglo-Irish Division of the Department of Foreign Affairs.

Decision

The Commissioner directed that access be granted to the vast majority of file titles.

The Commissioner commented that, on its own, a person's name contained in a file title held by a public body does not constitute personal information. However, he accepted that the listing of an individual's name in a file title held in the Anglo-Irish Division of the Department of Foreign Affairs carried a certain significance and met the definition of personal information at section 2(b).

The Commissioner accepted that disclosure of the names of transport companies used by Department officials and visiting dignitaries could reasonably be expected to facilitate or "make easier" the commission of an offence and that section 23(1)(c) applied.

The Commissioner accepted that the Department had identified a potential adverse effect on matters relating to Northern Ireland and that the Department was justified in concluding that this risk could reasonably be expected to materialise as a consequence of disclosing certain file titles related to particular activities carried out by the Department.

The Commissioner found that the Department had not explained how access to a file title which disclosed that a certain country had requested information on a certain issue could damage relations with that country as envisaged by section 24(1)(c).

The Commissioner stated that while political consequences domestically of release of records are not matters that he can properly take into account in conducting his review, that such consequences in another state are a different matter. He found that section 24(1)(d) applied to certain file titles related to the SDLP, PUP and Sinn Féin.

Date of Decision: 21.02.2001

Our Reference: 98190

21.02.2001

Mr X

Dear Mr X

I refer to your request for a review of the decision of the Department of Foreign Affairs ("the Department") to refuse you access to a list of titles and numbers of files held in its Anglo-Irish Division. At the outset, please accept my apologies for the delay in bringing this matter to a conclusion. I appreciate that you wished to obtain a decision on your application at an earlier date but unfortunately due to the large number of cases pending before me this did not prove possible.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to the Department's submission and its meetings with my officials. I have also had regard to the comments made in your letter of application and your contacts with my Office.

Scope of Review

The Department initially refused your request in full. Following meetings with officials from my Office, the Department agreed to release a number of file titles and numbers. My review therefore is concerned with the remaining titles, which have been set out in a letter to the Department of 24 November 2000 and can be described as follows:

Group 1 : file titles that identify individuals, Group 2 : file titles concerning the Department's transport arrangements, Group 3 : file titles related to particular activities carried out by the Department, Group 4 : a total of six file titles dealing with a variety of issues.

Findings

In describing my findings and bearing in mind that my decision is subject to appeal to the High Court on a point of law, I must have regard to section 43(3) of the Act which requires me to take all reasonable precautions to prevent disclosure of information in an exempt record.

Group 1 : File titles that identify individuals

Section 28

Although the Department did not specifically claim exemption under section 28 of the Act I consider it relevant to the file titles in Group 1. Section 28(1) provides that a request may be refused if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual.

The term "personal information" is defined in section 2 of the Act as:

"...information about an identifiable individual that - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential,"

To avoid confusion, the file titles in Group 1 have been identified in a letter of 24 November 2000 to the Department from my Office. The file titles consist of either the names of individuals or titles whose disclosure would reveal the identity of individuals.

At the outset I must state that I do not believe that, merely because a person's name is mentioned in a file title held by a public body, disclosure of the file title can be said to involve disclosure of personal information. For example, all taxpayers have dealings in some way with the Revenue Commissioners. The Revenue Commissioners may have file titles containing the names of most or all taxpayers. In such a situation I would find it difficult to accept that disclosure of the fact that any particular taxpayer's name is listed in a file title held by an organisation dealing with taxpayers would involve the disclosure of personal information about that person.

However, I accept that in this case the fact that individuals' names are listed in titles of files held in the Anglo-Irish Division of the Department of Foreign Affairs carries a certain significance. It is reasonable to conclude that the individuals concerned have a certain involvement or connection with matters under that Division's responsibility, i.e. Northern Ireland and relations between Ireland and Great Britain.

I consider that this information is personal information about the individuals concerned. In other words it is a type of information held by a public body that would normally be expected to be treated as confidential. Accordingly I find that the file titles in Group 1 satisfy the requirements of part (b) in the definition of personal information and that access to them would result in the disclosure of personal information as set out in section 28(1).

However I find that neither section 28(1) nor any of the exemptions claimed by the Department apply to the file numbers in Group 1.

Section 28(5) of the Act provides that section 28(1) shall not apply where the public interest that the request should be granted "outweighs" the public interest that the right to privacy of the individual to whom the information relates should be upheld. In other words, in order to grant access to personal information I am required to identify a positive public interest which can outweigh these privacy rights. In this case I am unable to identify such a public interest, and indeed none has been put to me, that would outweigh the right to privacy of the individuals concerned. Accordingly I find that access to the file titles in Group 1 should be refused under section 28(1) of the Act.

The file titles in Group 2 contain the names of transport companies employed by the Department for use by both their own and visiting officials.

The Department has stated that officials involved in Northern Ireland issues have been the subject of threats from paramilitary organisations and that such organisations could be assisted in putting officials at risk by revealing which companies the Department uses for transport.

It seems to me that what the Department is arguing is that the titles are exempt by virtue of section 23(1)(c) of the Act. This section provides that a request may be refused if access to the record "could reasonably be expected to facilitate the commission of an offence".

I note that the Oxford English Dictionary states that the word "facilitate" means "to make easier" or "to render easier". Therefore the question here is not whether such an offence will occur, but whether release of such company names could make it easier to commit an offence.

I accept the Department's evidence that its officials have been the subject of threats in the past. The offence that the Department is pointing to is that of a possible attack on its own or visiting officials. Given the uncertainty surrounding Northern Ireland affairs there is no guarantee that at some point in the future the safety of the Department's officials and other officials involved in Northern Ireland affairs will not come under threat. I agree that release of the company names could, in these circumstances, reasonably be expected to make it easier for the commission of such an offence and that section 23(1)(c) applies.

These files do not contain any reference numbers so the issue of access to them does not arise.

Section 23(3) provides that access to a record may be granted in specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. Those circumstances include those where the record discloses that an investigation is not authorised by law or contravenes any law, contains information concerning the performance of a public body of functions relating to law enforcement or contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of breaches of the law. No such record exists in this case and section 23(3) does not apply

Group 3 records - File titles related to particular activities carried out by the Department

Section 24

The Department has relied on section 24(1)(a), (c) and (d) of the FOI Act in refusing access to the remaining file titles in Group 3 and Group 4.

Section 24(1) provides that access to a record may be refused "....if, in the opinion of the head, access to it could reasonably be expected to affect adversely -

(a) the security of the State, (c) the international relations of the State, or (d) matters relating to Northern Ireland."

In case number 99273 (Mr ABL and the North Western Health Board), I explained my approach to section 21 which provides that a head may refuse to grant a request if access to the records could reasonably be expected to have a significant adverse effect on functions of public bodies:

"It seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur."

In a similar vein, I am satisfied that a public body claiming an exemption under section 24 must identify the potential adverse effect on matters relating to Northern Ireland or other matters covered by the exemption and, having identified that effect, consider the reasonableness of any expectation that the effect will occur.

I consider section 24(1)(d) to be the most appropriate section in relation to the records in Group 3. As explained above, I am required to take all reasonable precautions to prevent the disclosure, during the course of a review, of information contained in an exempt record. In the circumstances I feel unable to explain my decision in relation to these records in detail. I am satisfied that the Department has identified a potential adverse effect on matters relating to Northern Ireland, viz. a potential risk to some officials of the Department who deal with matters relating to Northern Ireland. I am also satisfied that the Department was justified in concluding that this potential risk could reasonably be expected to materialise as a consequence of disclosing the file titles in Group 3.

However, I find that none of the subsections of section 24(1) apply to the file numbers in this Group.

Group 4 records

As mentioned earlier, Group 4 consists of six individual file titles dealing with seven different issues. For the purposes of identification I will use the file numbering system adopted by the Department.

At this point I should also recall section 34(12)(b) of the FOI Act which provides that : " a decision to refuse to grant a request ... shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

The title of file "[number of file 1]." relates to a geographical area. Essentially, the Department claims that access to it should be refused for security reasons. As I mentioned earlier, for section 24 to apply it is necessary for the public body to identify the potential adverse effect on any matters listed in 24(1) and having identified that effect, consider the reasonableness of any expectation that the effect will occur.

In this case I do not accept that the Department has identified any adverse effect that could occur. There may be a number of reasons why the Department has a file on this particular area and certainly anyone who is reasonably familiar with the area or Northern Ireland generally may be aware of the significance of this particular area. I fail to see how disclosure of the fact that the Department has a file titled with this area could reasonably be expected to adversely affect any of the matters listed in section 24(1). Having regard to section 34(12) I find that the Department's decision to refuse access was not justified.

The title of file number "[number of file 2]" deals with requests received from another country for certain information. The Department contends that release of the title could result in the identification of a small number of people and that release would be detrimental to international relations with the country concerned.

Having examined the title it is clear that release of the file title would not result in the identification of any individuals. The Department has also failed to explain to me how release of the fact that requests for information on a certain issue have been received from a foreign country could damage relations with that country as envisaged in section 24(1)(c). Again I find that, having regard to section 34(12), the decision of the Department to refuse access was not justified.

In relation to file numbers "[number of file 3]", "[number of file 4]" and "[number of file 5]", the Department is willing to release part of the relevant title while refusing access to the remainder under section 24(1)(d), as set out below :

Again the question before me is whether access to the remaining material in the titles could reasonably be expected to affect adversely matters relating to Northern Ireland. The Department contends that release could be used by certain interested parties to undermine the political process in Northern Ireland. In general, the political consequences domestically of release of records are not matters which I can properly take into account in conducting a review under the FOI Act. However, the political consequences in another State are a different matter. I accept that the possibility of political consequences in Northern Ireland which might be inimical to the interests of this State arising from release, is something which can properly be taken into account in applying the exemption in section 24(1)(d). I am satisfied that the Department has identified such consequences; that if they came to pass they would constitute an adverse effect on matters relating to Northern Ireland; and that such an effect could reasonably be expected to occur as a consequence of release in full of these file titles.

The title of file number "[number of file 6]" is concerned with the location of an individual who is involved in the exchange of information on criminal activity. The Department has argued that release of the title would highlight the presence of the individual and as a result, his/her safety could be put at risk. It is implied in the Department's argument that there would also be a resulting adverse effect on the ability of agencies involved to detect certain information relating to criminal activity. It seems therefore, that the Department is arguing that section 23(1)(a)(i) applies.

Section 23(1)(a)(i) states that access to a record may be refused if access could reasonably be expected to prejudice or impair "the prevention, detection or investigation of offences ....or the effectiveness of lawful methods, systems, plans or procedures employed for the matters aforesaid".

Having examined the file title I am satisfied that the release of information contained therein could attract attention to the presence of the individual concerned and that that could reasonably be expected to result in the effectiveness of the systems employed for the detection and prevention of criminal offences being impaired.

As explained earlier, section 23(3) provides that access to a record may be granted in specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. Those circumstances include those where the record discloses that an investigation is not authorised by law or contravenes any law, contains information concerning the performance of a public body of functions relating to law enforcement or contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of breaches of the law. No such record exists in this case and section 23(3) does not apply.

I therefore find that section 23(1)(a) applies to the title of file "[number of file6]".

Decision

Having completed my review under section 34(2) of the FOI Act, I have decided to vary, in the manner described above, the decision of the Department to refuse you access to a list of those titles and numbers of files held in its Anglo-Irish Division which are the subject of this review.

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.